Palmer: Legislation just a running gag

Vaughn Palmer, Vancouver Sun05.02.2012

VICTORIA - As a measure of the B.C. Liberal government’s waning grip on political reality, I give you the miscellaneous bill introduced Tuesday afternoon, containing within it legislative “limits on third party advertising.”
Yes, once again the Liberals are trying to enact severe limits on advertising in the run-up to a provincial election. They came into office having opposed a mid-1990s attempt by the previous New Democratic Party government to put limits on election advertising by interest groups, industry associations and other so-called third parties. “A gag law,” as Liberal leader and premier-to-be Gordon Campbell branded the legislation.Glenn Baglo, PNG Files
/ Vancouver Sun

VICTORIA - As a measure of the B.C. Liberal government’s waning grip on political reality, I give you the miscellaneous bill introduced Tuesday afternoon, containing within it legislative “limits on third party advertising.”

Yes, once again the Liberals are trying to enact severe limits on advertising in the run-up to a provincial election.

They came into office having opposed a mid-1990s attempt by the previous New Democratic Party government to put limits on election advertising by interest groups, industry associations and other so-called third parties.

“Anything the government does that restricts expression undercuts the very purpose of a modern, open Election Act. Elected officials should not be deciding the rules by which they are elected.”

The courts agreed, tossing the NDP law and the Liberals vowed no repeat.

But all that changed after they ran into a blitz of advertising — most notably a $1.5-million campaign mounted by the B.C. Teachers’ Federation — in advance of the 2005 election, the first to be held on a fixed-in-law four-year cycle.

Losing 30 seats while retaining power, the Liberals concluded that maybe there needed to be some sort of restriction on ads in concert with the fixed election date, particularly now that they were the prime target.

Re-enter the gag law.

Introduced in the 2008 session of the legislature, it limited third parties to spending $3,000 per constituency, $150,000 in total on any and all advertising, for or against a particular party or policy position.

In the initial version of the bill, the gag was applied to the 120 days leading up to the formal 28-day election campaign. But after considerable backlash, the Liberals halved the pre-campaign restriction to 60 days.

“We ran something up a flagpole and it didn’t fly like we thought it would,” as then-attorney-general Wally Oppal memorably explained. “When you look at the 120 days, a court could say that the principle is sound but the length of the period is inordinate and it is an infringement on freedom of speech.”

But a 60-day infringement on freedom of speech? No problem. “I have no difficulty saying that in my view, 60 days is reasonable and will pass constitutional muster.

Unfortunately for him and the Liberals, the courts did not agree. The BCTF challenged the legislation, winning a big victory on the eve of the 2009 election, as B.C. Supreme Court Justice Frank Cole shredded the gag in decisive fashion.

Found to be especially offensive was the way the 60-day restriction could overlap with a pre-election session of the legislature, including the period of political debate framed by the budget and throne speech.

“To curtail the ability of third parties to engage in political speech at that crucial time in the absence of an evidentiary or logical basis as to why it is necessary to do so is not a minimal impairment of freedom of expression,” he wrote.

The Liberals remained wedded to their legislation — “this decision does not advance the interest of fair elections” — and after securing a third term, they headed back to court. Such are the prerogatives of a funded-by-taxpayers bottomless-pit budget for legal services.

But last fall they lost a second time, as a three-member panel of the Appeal Court unanimously upheld the earlier Supreme Court ruling.

Still the Liberals wouldn’t quit. This week’s bill borrows heavily on their earlier gag laws, with a couple of exceptions.

The period to which the gag applies is now reduced to 40 days.

And it is a shame that Wally Oppal, retired by the voters last time out, isn’t here to defend the new limit.

“We ran 120 days up the flagpole. Didn’t fly. We reduced it 60 days. Ditto. So let’s try 40 days. No, make that 10. Do I hear five? One, and that’s our final offer.”

More significant is a revision tailored to those from-the-bench complaints about the gag maybe curtailing public discussion about the throne speech, budget and legislation in an election year.

In the event of a prolonged session (itself up to the call of government), the pre-campaign restriction would be reduced to the 21 days before the formal commencement of the campaign.

Taking next year as the example, the election is set for May 14. The four-week campaign commences with the issuance of the election writ on April 16. The gag would thus apply as early as March 7, as late as the 26th, depending on when the government chooses to adjourn the house.

The Liberals themselves intend to submit the revision to the courts, in hopes it will finally pass muster.

“The court was clear about what it wanted changed and what they thought needed to be revised. The government has worked very hard to try and understand the concerns,” as Premier Christy Clark told reporters.

Third time lucky for the Liberals with the courts? Maybe.

But given their unpopularity, you have to wonder why they would risk a backlash over yet another attempt to limit criticism of themselves in the run-up to an election.

vpalmer@vancouversun.com

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Palmer: Legislation just a running gag

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